Free Exercise
of ReligionThe issue: When may the
government enforce a law that burdens an individual's ability
to
exercise
his or her religious beliefs?

Introduction

Supreme Court
interpretation
of the Free Exercise Clause has come full circle. From its narrow
reading of the clause in 1878 in Reynolds, to its much broader reading
of the clause in the Warren and Burger Court years, the Court returned
to its narrow interpretation in the controversial 1990 case of Employment
Division of Oregon v Smith. The story of this circular
migration
is an interesting one, and may provide lessons for other areas of
constitutional
interpretation.

The Court's
decision in Smith
provoked almost unanimous criticism on Capitol Hill, and Congress
quickly
responded by passing the Religious Freedom Restoration Act, designed to
restore the test abandoned in Smith. This effort,
however,
largely was to fail, as the Supreme Court ruled that Congress lacked
the
power to compel state accomodation of significantly burdened religious
beliefs and practices.

The Supreme
Court's first
encounter with a Free Exercise Clause claim came when a Mormon
polygamist
in the Utah Territory challenged his conviction under a federal
anti-polygamy
law. The Supreme Court rejected the appellant's claim that his
religious
beliefs necessitated, and therefore excused, his violation of federal
law.
The Court read the Free Exercise Clause as protecting religious beliefs,
not religious practices that run counter to neutrally enforced
criminal
laws.

By the Warren
Court years
of the 1960s, the Court had adopted a much more expansive view of the
Free
Exercise Clause, reading it to compel governmental accomodation of
religiously-motivated
conduct in the absence of a compelling state interest and the use of
means
that least burdened religious practices. Applying this strict
scutiny
to laws that significantly burdened religious exercise, the Court found
unconstitutional South Carolina's law denying unemployment benefits to
a Seventh Day Adventist who turned down a job opportunity that included
Saturday work (Sherbert).

The Burger
Court continued
to apply this test, using it in 1972 to find unconstitutional (as
applied
to Amish families) Wisconsin's law mandating attendance in schools
until
age 17 (Yoder). State and lower federal courts, of course,
applied strict scrutiny to enjoin a variety of criminal laws in the
1970s
and 80s. For example, in 1979 in Frank v Alaska, the
Alaska
Supreme Court held that the state could not enforce its hunting laws
against
Athabascans who were religiously-motivated to hunt moose out of
season--moose
being a key ingredient in a religiously proper funeral potlatch.

By the
mid-80s, the Supreme
Court, while still using heightened scutiny, began to take a more
skeptical
view of Free Exercise claims. The close division of the Court on
these claims was revealed in its 1985 affirmance (by an equally divided
Court, Justice Marshall not participating) of an Eighth Circuit
decision
enjoining Nebraska from enforcing a state law requiring photo
identification
on driver's licenses against a Nebraska motorist who believed that such
pictures violated the Second Commandment's warning against worshipping
graven images (Quaring v Nebraska). The next year, the tide
turned
against Free Exercise claimants when the Court rejected, 5 to 4, the
seemingly
sympathetic request of an Orthodox Jewish army psychiatrist who felt
religiously-compelled
to wear a yamulke on duty, and who asked to be exempted from the
military's
ban on such headwear (Goldman).

Lyng v
Northwest Protective
Cemetery Association in 1988 provided a major hint of the
revolution
in Free Exercise law to come by adopting a per se rule that the
government need not concern itself with the impact that its land use
decisions
might have on religious practices. Based on this newly announced
principle, the Court permitted the United States to proceed with
construction
of a road through a national forest that would concededly have severe
consequences
for the practitioners of a Native American religion who considered the
area sacred.

The big
development--shocking
to some--in Free Exercise jurisprudence came in Employment Division
v Smith in 1990. Reinterpreting and, in some cases, throwing
out decades of caselaw, five members of the Supreme Court concluded
that
a generally applicable criminal law raises no Free Exercise issues at
all,
ending what had long been the obligation of states to demonstrate at
least
an important state interest and narrow tailoring when they enforced
laws
that significantly burdened religious practice. The Court
reinterpreted
some Free Exercise cases such as Yoder as "hybrid" cases,
raising
both Free Exercise and substantive due process issues. Other
cases
such as Sherbert, Thomas, and Hobbie were placed in the
special
category of "unemployment compensation rules" --and left
undisturbed.
From now on, the five-member majority proclaimed, states will have to
satisfy
heightened scrutiny (except for hybrid cases and unemployment cases)
only
when a law specifically targets religious practice.

In 1993, in Church
of Lukumi Babalu Aye v Hialeah, the Supreme Court took a case which
it concluded showed an attempt by government to specifically target an
unpopular religious practice, and struck down the laws in question--all
designed to deal with animal sacrifice practiced by a large but largely
clantestine religion of mostly ex-Cubans. The Court unanimously
concluded
that the ordinances of Hialeah violated the Free Exercise Clause.

The Smith
decision
proved as unpopular with Congress as it did with many within the
religious
community. Congress in 1993 responded to the Smith
decision
by voting overwhelmingly to pass the Religious Freedom Restoratation
Act
of 1993 designed to return religious exercise cases to the pre-Smith
standard
for laws burdening religious practices. Under RFRA, federal,
state,
and local laws interfering with religious exercise would have to be
supported
by a compelling state interest and be a least restrictive of religious
freedom as possible. The Supreme Court, however, gets the last
word
on issues of constitutional interpretation. In 1997, in City of Boerne
v Flores, the Court ruled that RFRA was unconstitutional, at least
as applied to state and local governments. The Court concluded
that
the Constitution, and in particular Section 5 of the Fourteenth
Amendment,
gave no power to Congress to do more than adopt remedial measures
consistent
with Fourteenth Amendment interpretations of the Court, and that
Congress
had instead tried to changed the substantive law--substituting its
interpretation
of the Free Exercise Clause for that of the Supreme Court.

Joshua Davey (American Bar Journal photo)

In 2004, the
Supreme Court in Locke v Davey
considered the reach of Lukumi Babalu
in a case involving a Washington State scholarship program for gifted
students. The program allowed students receiving a state
scholarship to pursue any major, with one exception: a degree in
devotional theology. When Joshua Davey, a scholarship recipient,
was denied funding to pursue a theology program at Northwest, a private
religious college, he sued, alleging that Washington had violated his
Free Exercise right. Chief Justice Rehnquist, writing for a 7 to
2 majority, found that the Free Exercise Clause and Establishment
Clause, read together, offered enough "play in the joints" to allow
Washington to exclude a major in devotional theology, "a religious
calling" as much as "an academic pursuit," from the list of endeavors
it will support with taxpayer funds. Justices Scalia and Thomas
disagreed, finding the exclusion to be a clear violation of Free
Exercise principles laid down in Lukumi
Babalu.

For a free exercise claim to
have any chance of success, two things must first be established.
First, it must be shown that the religious belief allegedly burdened by
the government is central
to one's religious beliefs. (This issue was debated by justices
in Frank v Alaska, above,
where the majority concluded that having fresh moose meat for a funeral
potlatch was central to Athabascan religious practice, while a
dissenting justice disagreed.) Second, it must be shown that the
religious belief that is allegedly burdened is sincerely held.
Once a good faith belief is established, the court's inquiry should
end: there should be no attempt to determine whether the belief is
true. (Ballard v United States).
Note that in Ballard, Justice
Jackson in dissent would not even have allowed judicial inquiry into
whether the belief was sincerely held: "I would be done with this
business of judicially examining other people's faiths."

"Morning Peyote" by Rance Hood (1969)

Adele Sherbert, the Seventh Day Adventist who
brought
a successful free exercise suit against South Carolina for
denying
her unemployment benefits after she refused to work on Saturdays.

Questions

1. Do you agree that
the text
of the Free Exercise Clause suggests that it protects
religiously-motivated
conduct as well as beliefs?2. Is the Court's
conclusion
in Smith that the law imposes no limitations on government's
ability
to enforce criminal laws of general applicability consistent with the
framers'
original understanding? Why did the Court in Smith pay so
little attention to the historical record on this matter?3. Yoder
holds that
the Amish are exempt from state compulsory education laws because
public
education beyond a certain age threatens the religious values of the
Amish.
Does this case suggest that Christian Fundamentalists have a free
exercise
right to be exempted from, say, biology classes in which evolution is
taught
or requirements in a literature course that they read
religiously-objectionable
works?4. After Smith,
it would be possible for a state to prosecute a priest or minister who
offers communion wine for distributing alcohol to a minor. Is
such
a prosecution likely to occur? Why not? Does this suggest
that
the real losers in Smith are religions that have relatively few
adherents, and especially those that are unpopular?5. What in the
Constitution
supports applying a different and more deferential standard when it is
a military regulation, rather than a civilian regulation, that is
alleged
to impinge upon constitutional liberties (as the Court suggested in Goldman)?
Would it be better to apply the same standard, recognizing (of course)
that national security is an interest of the highest order?6. Lukumi
Bababu
Aye holds that government may not target a religious practice for
prosecution.
Suppose a state where concerned about a religious sect that practiced
the
handling of poisonous snakes in its worship services. How might
the
state draft a law that would avoid the constitutional problems that
Hialeah
encountered with its law attempting to deal with animal sacrifice?7. What do you
think
about the argument of Justice Stevens in the Boerne case: that
to
grant the Catholic Church an exemption from zoning laws that would not
be given to a non-religious institution violates the Establishment
Clause?
How would you resolve the tension between the Free Exercise Clause and
Establishment Clause?8. Justice Scalia
argues
in Smith that an honest application of the compelling state
interest
test in free exercise cases involving neutral laws would lead to
anarchy
and chaos, with religions of all sorts getting exemptions from a wide
variety
of laws and programs. Is he right? Has the Court been using
a "watered down" compelling state interest test in free exercise cases?9. If the
compelling
state interest teest were to be applied in Smith, would Oregon
have
been able to satisfy it? How strong is the state's interest in
prohibiting
the use of peyote in the religious ceremonies of Native Americans?10. The
Religious
Freedom and Restoration Act of 1993 passed in the Senate on a vote of
96
to 3. Does that vote suggest that support for the weakened free
exercise
test of Smith is diffuse at best?11. Could you
suggest
a way in which Hialeah could redraft its ordinances to effectively
prohibit
animal sacrifice without violating the Free Exercise Clause or
criminalizing
widely accepted forms of animal killing?